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Confirmation declarations agreed

15 January 18

From the Professional Practice team: forms of declaration in applications for confirmation by executors nominate have been agreed between the Society and Scottish Courts & Tribunals Service

The Trust & Succession Committee of the Law Society of Scotland and the Scottish Courts & Tribunals Service (SCTS) have recently been in discussions regarding the requirements of an executor’s declaration in an application for confirmation, following the introduction of the Succession (Scotland) Act 2016 from 1 November 2016.

In terms of s 1 of the Act, the court requires to be satisfied as to the extent of the relationship between the deceased and the executor, and as such SCTS has issued guidance on this point which states that:

“Where an application for confirmation nominate (including an application in terms of s 3 of the Executors (Scotland) Act 1900) is received, that every declaration, other than those where a professional body is appointed as executor, will contain a statement setting out the relationship between the deceased and the applicant, and any other named executor, at the date of death.”

The crux of the matter is whether the deceased was either married/in a civil partnership or was ever married/in a civil partnership with the executor. The existence of some other form of relationship does not necessarily allow the court to conclude that there has not been a marriage or civil partnership between the executor and the deceased. The committee noted that in most cases, a declaration that there has, or has not, been a marriage or civil partnership would be a simple way of closing this loophole and providing the necessary information.

To assist solicitors and also sheriff clerks, the Society and SCTS have agreed a short suite of styles to be used when an averment that the executor was/was not married or in a civil partnership with the deceased is required. These styles draw on the existing version in Currie on Confirmation, para A8-03 and are set out below.

New versions of Currie style 8-03 for individual executors for deaths after 1 November 2016, reflecting changes made by Succession (Scotland) Act 2016, s 1

Where person declaring is and remains the wife/civil partner of the deceased [along with others]

That I am [if appropriate, along with AB [design] and CD [design]] the executor nominate of the deceased conform to his [or her] will dated [date] and registered in the Books of [specify] on [date] herewith exhibited, docqueted and signed as relative hereto and that I am the wife/husband/civil partner of the deceased [and that neither of the said AB nor CD has ever been married to or in a civil partnership with the deceased].

[Note: term used is “wife/husband” rather than “widow/widower” in keeping with other styles of petition etc. If there are other executors appointed apart from the continuing spouse/civil partner, the last words may be considered unnecessary but it is just possible that the people involved were also former spouses/civil partners]

Where person declaring is not the wife/husband/civil partner of the deceased but is applying along with the wife/husband/civil partner

That I am, along with AB [design] the executor nominate of the deceased conform to his [or her] will dated [date] and registered in the Books of [specify] on [date] herewith exhibited, docqueted and signed as relative hereto and that I have never been married to or in a civil partnership with the deceased and that the said AB is the wife/husband/civil partner of the deceased.

Where neither the person declaring nor other persons appointed has been married to/civil partner with deceased

That I am [if appropriate, along with AB [design [and CD [design]] the executor nominate of the deceased conform to his [or her] will dated [date] and registered in the Books of [specify] on [date] herewith exhibited, docqueted and signed as relative hereto and that I have never [none of myself, AB and CD has ever] been married to or in a civil partnership with the deceased.

Where person declaring was appointed with someone who was formerly the spouse/civil partner of the deceased

That I am the executor nominate of the deceased conform to his [or her] will dated [date] and registered in the Books of [specify] on [date] herewith exhibited, docqueted and signed as relative hereto and that I have never been married to or in a civil partnership with the deceased. In said will EF [design] was appointed as the executor nominate of the said deceased. S/He was the wife/husband/civil partner of the said deceased, but that relationship was terminated by divorce/dissolution/annulment, an extract decree of which is herewith exhibited, docqueted and signed as relative hereto.